More transparency coming to blog reviews under new FTC rules

The FTC has announced new rules governing "consumer-generated" media outlets …

Bloggers will come under the watchful eyes of the Federal Trade Commission for the first time, as the agency has finalized new rules governing bloggers and the products they write about. "Consumer-generated media" outlets (e.g., bloggers) will now have to disclose if they are being compensated by a manufacturer, advertiser, or service provider when they review an item. So if a blogger gets a laptop from a manufacturer to review and gets to keep it, he or she will have to make that fact public.

The new guidelines don't tell bloggers how they need to make the disclosure, but they do lay out the penalties: up to $11,000 per violation with the possibility of injunctions to boot, although the FTC makes it clear that the fines are a last resort. "Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law," FTC assistant director of advertising practices Richard Cleland told Fast Company. The FTC could also order that consumers be reimbursed in cases where a relationship between blogger and advertiser isn't disclosed and they suffer financial harm because of it.

The FTC began studying the issue in January 2007, and the debate since then has been hot and heavy. Some commenters during the rule-making processes said that there was no need for the government to get involved, arguing that industry self-regulation with occasional FTC enforcement under existing laws was sufficient. There were also fears that the commission would wield a broad regulatory axe in the forest of consumer-generated media.

If you're into gadgets and computer hardware and like to blog about your newest purchases, chances are good that you'll never draw the FTC's attention. Those who buy a product "with his or her own money and praise it on a personal blog or on an electronic message board will not be deemed to be providing an endorsement," read the rules. At the other end of the spectrum, anyone who is directly compensated to write about a product by an advertiser is covered by the new rules.

46 Reader Comments

TBH, this seems pretty reasonable to me. I'm sure there will be plenty of people flipping out about government overrreaching and whatnot, but in practice I doubt there will be resources for much enforcement outside of particularly flagrant violations by bloggers who are popular/influential enough to have gone pro and should therefore know better.

I don't like getting lied to either, but this is a blatant over reach of the FTC's authority. How on earth they thought they had any legal right to do this is beyond me, and I hope it gets challenged in court ASAP and thrown out.

Originally posted by willmo:TBH, this seems pretty reasonable to me. I'm sure there will be plenty of people flipping out about government overrreaching and whatnot, but in practice I doubt there will be resources for much enforcement outside of particularly flagrant violations by bloggers who are popular/influential enough to have gone pro and should therefore know better.

No it is not reasonable at all, actually. There is zero point to it at all. Its passing laws for the sake of passing laws just because they can.

A "blog" is nothing more then a website, any website.

Having a website is the one form of freedom of speech that a individual can exercise and have a chance of hell that other people may read it. That is it. THE ONE FORM. And its currently completely unregulated. A person's motivation behind running a website is no business of the government's. NONE.

If a person has "gone pro" and is astroturfing a product then so what? WHO CARES? Thats their problem. Screw them.

I can't believe any person with half a brain would hand over the ability for the government to control and regulate free speech in this fashion and say "Oh, sounds reasonable".

Well, no. It is not. There is no need for it and as far as I am concerned it should be unconstitutional. This is not "yelling fire in a movie theater", this is just a person that has a motivation to promote a product. Its, quite frankly, none of the government's f-ing business.

While I have my concerns over government regulation of speech, I'm more curious about other issues surrounding this. Does the FTC apply similar standards to other media? I'm not sure your regular old magazines disclose this sort of thing, for instance. However, magazines are recognizably commercial endeavors, while blogs frequently are not. Given that this is commercial speech we're talking about, I'm inclined to give regulators a fair bit of leeway. My ability to hear a wide variety of opinions is aided by the restriction of large manufacturers to pay many people to say the same thing.

I like this regulation. All you need to do is state that you got free products for the review or paid money or other considerations. If you did not get paid for it you are free to go on like before. I don't see the problem with this. This will cut down on fake reviews on the web.

the gov't doesn't let you make a child porn website. they don't let you make a fake merchant site or impersonate companies. the web is not "unregulated."

so the question is: should THIS be regulated? personally i think that transparency is the only way the market actually works. This regulation helps to make things more transparent. personally i think all regulation should be like this. they don't tell you HOW to do something, they just tell you to tell people about your back door shenanigans.

i am sure people that get accused of getting paid by the people they are reviewing will be happy they will be able to say "if i did that it would be illegal"

(please be aware that i use federal roads and other federally funded stuff during my day)

Originally posted by willmo:TBH, this seems pretty reasonable to me. I'm sure there will be plenty of people flipping out about government overrreaching and whatnot, but in practice I doubt there will be resources for much enforcement outside of particularly flagrant violations by bloggers who are popular/influential enough to have gone pro and should therefore know better.

No it is not reasonable at all, actually. There is zero point to it at all. Its passing laws for the sake of passing laws just because they can.

A "blog" is nothing more then a website, any website.

Having a website is the one form of freedom of speech that a individual can exercise and have a chance of hell that other people may read it. That is it. THE ONE FORM. And its currently completely unregulated. A person's motivation behind running a website is no business of the government's. NONE.

If a person has "gone pro" and is astroturfing a product then so what? WHO CARES? Thats their problem. Screw them.

I can't believe any person with half a brain would hand over the ability for the government to control and regulate free speech in this fashion and say "Oh, sounds reasonable".

Well, no. It is not. There is no need for it and as far as I am concerned it should be unconstitutional. This is not "yelling fire in a movie theater", this is just a person that has a motivation to promote a product. Its, quite frankly, none of the government's f-ing business.

What do you think of 'truth in advertising' regulations, or even the existence of the FTC more generally?

Based on what you've written here, I get the impression that even requiring advertisers to label what they produce as an advertisement (rather than, say, making it resemble as perfectly as possible the newspaper or website content it's displayed along) is just as fundamental an infringement on one's rights as the above decision.

I see consumer protection regulation (and particularly 'truth in advertising' regulations) as a clear example of an area of US law where fundamental rights and freedoms of people need to be balanced against those of other people, and therefore, as a good example of why even those rights (most specifically in this case the right to free speech) are not without boundaries.

Are bloggers even aware of the fact that they are/can be regulated by the FTC? I expect the FTC to promptly notify every blogger in the country after passing the rule.Oh, and I have another suggestions - the DOT should start regulating car repair forum posts.

Originally posted by willmo:TBH, this seems pretty reasonable to me. I'm sure there will be plenty of people flipping out about government overrreaching and whatnot, but in practice I doubt there will be resources for much enforcement outside of particularly flagrant violations by bloggers who are popular/influential enough to have gone pro and should therefore know better.

No it is not reasonable at all, actually. There is zero point to it at all. Its passing laws for the sake of passing laws just because they can.

A "blog" is nothing more then a website, any website.

Having a website is the one form of freedom of speech that a individual can exercise and have a chance of hell that other people may read it. That is it. THE ONE FORM. And its currently completely unregulated. A person's motivation behind running a website is no business of the government's. NONE.

If a person has "gone pro" and is astroturfing a product then so what? WHO CARES? Thats their problem. Screw them.

I can't believe any person with half a brain would hand over the ability for the government to control and regulate free speech in this fashion and say "Oh, sounds reasonable".

Well, no. It is not. There is no need for it and as far as I am concerned it should be unconstitutional. This is not "yelling fire in a movie theater", this is just a person that has a motivation to promote a product. Its, quite frankly, none of the government's f-ing business.

On what basis is it unconstitutional? It does not infringe free speech since it does not in any way prevent a person from speaking. All it does is require disclosure, which is a court tested and perfectly appropriate requirement.

Originally posted by CharlieM:And how exactly is the FTC qualified to do this kind of work? To make judgements on the edge of basic rights?

And where do they draw the line? US bloggers on foreign websites? All websites? And all articles? Or just above a specific value?

Too many questions and too few answers so far.

Firstly, the FTC has the authority because they regualte commerce and hence advertising of said commerce. This is putting paid/compensated writting on the web in the same catagory as printed media and I see nothing wrong with that. Frankly I find rview sites with dozens of undisclosed affiliate program links objectonable as well, but it doesn't seem to address that.

Secondly, have you read the legislation? Might answer a lot of those undefined questions of yours.

Originally posted by drag:Well, no. It is not. There is no need for it and as far as I am concerned it should be unconstitutional. This is not "yelling fire in a movie theater", this is just a person that has a motivation to promote a product. Its, quite frankly, none of the government's f-ing business.

You're right, it is not "fire in a movie theater." It is commercial speech since a company has paid for its expression. Commercial speech is already regulated. If you want to get paid for your personal blog, then you made the choice to change your personal blog into a commercial blog. As such, you're subject to the rules regarding commercial speech. Similar to the political campaign ads that tell you who paid for them. This concept already existed in the law, so your outrage seems a bit late and misdirected. Its application in this scenario is consistent with past behavior.

Originally posted by yoyobrains:I know the new rules don't go into effect untill december but out of curiosity, how about ars? Do you guys get products for free to review?

Opposable Thumbs gets "review copies" of games that they review, which I assume they don't pay for. However, we know they get these, because Ben tells us, which means he's already disclosing the relationship, as the new FTC guidelines would require.

I'm amused at the "but, but... freedom of speech!" whiners who were apparently unaware that this is not a change to how commercial speech is already regulated and this is merely a change of scope of regulations that exist for good reason.

Originally posted by CharlieM:And how exactly is the FTC qualified to do this kind of work? To make judgements on the edge of basic rights?

And where do they draw the line? US bloggers on foreign websites? All websites? And all articles? Or just above a specific value?

Too many questions and too few answers so far.

The FTC has a handy PDF of their new regulation, complete with multiple examples in each section, covering both 'this is an endorsement' and 'this is not an endorsement' cases.

If you don't have questions more specific than what you've written above, I recommend following the link in the ars technica article and spending a bit of time reading the pdf. It's well worth the effort.

I certainly want to know what circumstances a review is done under, regardless of its location or format.Did the reviewer get the item for free?Is the reviewer being paid for the review?

I want to know these things so I can decide whether I consider the review unbiased or not. Pretty simple really. I've spent money on crap that got very undeserved praise, and that praise could very well have been bought and paid for by the company making the product. The kind of disclosure being proposed would have helped me make an informed, not deluded decision.

I'm not so much concerned about the new regulations themselves as I am about how they will be enforced. Will they be enforced by a completely voluntary mechanism, such as a competing company complaining to the FTC about a fake review? Or will there be numerous FTC agents scouring the internet looking for infractions. To be frank, I would hate if any of the gaming sites I visit (gametrailers, destructoid, etc) were fined or even closed down because someone forgot to disclose the obvious fact they are sometimes funded by game companies.

Originally posted by chronomitch:I'm not so much concerned about the new regulations themselves as I am about how they will be enforced. Will they be enforced by a completely voluntary mechanism, such as a competing company complaining to the FTC about a fake review? Or will there be numerous FTC agents scouring the internet looking for infractions. To be frank, I would hate if any of the gaming sites I visit (gametrailers, destructoid, etc) were fined or even closed down because someone forgot to disclose the obvious fact they are sometimes funded by game companies.

This regulation as a practical matter is completely unenforceable. Assuming that the FTC "scours" the Internet at all, which seems highly unlikely considering the disparity between the number of people employed to do the scouring and the number of product blogs which exist, just what might they be "scouring"? If a product blog says nothing about being compensated by a vested commercial party, the FTC flatly isn't going to have an inkling of an idea whether a particular blogger was compensated by a company or whether he wasn't. It doesn't follow that a positive blog denotes that the blogger was compensated by the manufacturer, and it doesn't follow that a negative blog means he wasn't.

Also, any site worth its salt would declare something like: "Although we are routinely provided with hardware and software for the purpose of review, we have long made it plain to our readership that our written opinions are never affected by this practice. We call it the way we see it."

As a practical matter, it doesn't seem as if this regulation will have any effect whatever. I've always thought it would be nice if websites had to disclose any financial relationships they had with product vendors, and I hope that will be the effect of this regulation. Beyond that it doesn't appear that this is a regulation that will actually do anything, since proving that a given company's contribution to a blogger actually steered his opinion is something completely outside the scope of this regulation. It will still be up to the reader to make up his mind either way.

Originally posted by MilleniX:Does the FTC apply similar standards to other media? I'm not sure your regular old magazines disclose this sort of thing, for instance.

yes, they require THIS IS AN ADVERTISEMENT or similar at the bottom of those full-page ads that try to look like part of the magazine content.

Griz, I get where you're trying to go but that isn't quite the right analogy. Advertisements disguised to look like editoral are a completely different beast. The "this is an advertisement" is to distingish it is not editorial and generally not written by said media's staff not whether said writter was compensated, although i'm sure they were.

This is different in that it deals with compensation (in money or product) for a reviews and endoresements written by professional or amature writters. Many professionals (with budgets for such things) already choose to purchase the products they review just so they don't appear biased. Furher, I believe these regulations only apply if the writter keeps the product, not if it was merely loaned, I havn't read the full 81 pages yet just the shorter press realease.

As for enforcement, typically the FTC works on a complaint model, not on active enforcement. Witness Janet Jackson nipples. The is discussion in the press realease that these are guidelines, not law, and would need to be evaluate in a lawsuit as such if a suit came up....

I find it interesting that this article is given a headline that claims this is about 'transparency' rather than stifling freedom of expression. Particularly when it's only reasonable to assume that if anyone is to benefit from this unconstitutional regulation, it would be a commercial website like Ars.

Originally posted by Edzo:I find it interesting that this article is given a headline that claims this is about 'transparency' rather than stifling freedom of expression. Particularly when it's only reasonable to assume that if anyone is to benefit from this unconstitutional regulation, it would be a commercial website like Ars.

Seriously? Would the Tin Hatters at least go read the press release? Really you sound like a bunch of morons with turets that just have to spout of irrelevant crap just to hear yourselves talk.

So what exactly is a blogger anyway? Can a blogger just make it a forum post and avoid the fines? Or just blog via straight html files? Or hand write the review, scan it in as a PNG? So then we'll have special laws for PNGers!?

Originally posted by Edzo:I find it interesting that this article is given a headline that claims this is about 'transparency' rather than stifling freedom of expression. Particularly when it's only reasonable to assume that if anyone is to benefit from this unconstitutional regulation, it would be a commercial website like Ars.

How is requiring what is essentially hidden advertising or political work to disclose who is paying for them keeping them from saying Anything ?

There is nothing here about not being allowed to say whatever you want only that you must disclose who you are working for.

Why would Any coherent individual have an issue with that? Don't you want to know if some advice telling you that your favorite drink will give you crotch cancer came from their competitor instead of a legitimately informed and concerned citizen?

The only reason I can see someone being upset about this is if they were participating in deliberate FUD and wanted to hide their motivations.

Originally posted by LimpBagel:I get a free t-shirt at SPORTING_EVENT. Am I now required to disclose that when I talk about liking that event or team?

I haven't read the actual rule/regulation that will cover such things, but my guess would be "no". If everyone got a free t-shirt, I fail to see how it's favoritism. But, the devil's always in the details, right?

Originally posted by Edzo:I find it interesting that this article is given a headline that claims this is about 'transparency' rather than stifling freedom of expression. Particularly when it's only reasonable to assume that if anyone is to benefit from this unconstitutional regulation, it would be a commercial website like Ars.

How does this infringe upon freedom of expression? How is it unconstitutional?

I keep seeing this term thrown around, but much like another famous individual, I do not think this term means what you think it means...

Originally posted by LimpBagel:I get a free t-shirt at SPORTING_EVENT. Am I now required to disclose that when I talk about liking that event or team?

I haven't read the actual rule/regulation that will cover such things, but my guess would be "no". If everyone got a free t-shirt, I fail to see how it's favoritism. But, the devil's always in the details, right?

Based on my quick perusal of the guidelines, disclosure would almost certainly not be required. Again, I encourage people to actually read the guidelines. It's far more useful that posting questions (sarcastic or serious) here, and allows one to see right through the 'free speech' problems implied (but not yet specified) by some here.

"Given that this is commercial speech we're talking about, I'm inclined to give regulators a fair bit of leeway."

This isn't commercial speech. I have written dozens of reviews for various e-zines. I received no pay. Sometimes the reviewed product was given to me, sometimes I owned it. Regardless, I have no Constitutional obligation to indicate whether the product was given or bought. I don't care what the FCC says about this, they do not have the authority to make such a regulation concerning speech.

The singling out of weblogs is especially galling. I can talk to people (face-to-face, via radio, or via TV) or write (in a paper or a magazine) about a product or service, and I don't have to disclose whether or not I'm getting compensation. But, if I do the same thing on my web site, then I'm subject to fines. What crap. Plus, what's to prevent me from lying? I could write: "I received no compensation for this review." despite getting a free product. Who would know other than a few people who work for the vendor? Will the FCC next require us to post copies of our receipts?

What is most irksome: the driving force behind this regulation is video game review web sites. That's right, people were angry because some reviewers were paid to praise mediocre games. Any discriminating reader would know which game review web sites were crap: older game reviews would have customer ratings significantly lower than reviewer ratings. But, instead of using their brains (ow, too much work), the whiners latched onto the "there ought to be a law" tactic and begged the FCC to trample our rights. Thank you, stupid game buyers!

Originally posted by tetrault:This isn't commercial speech. I have written dozens of reviews for various e-zines. I received no pay.

It may not have been commercial for you, but it certainly was for the party who gifted you the hardware or software.

quote:

Sometimes the reviewed product was given to me, sometimes I owned it. Regardless, I have no Constitutional obligation to indicate whether the product was given or bought.

You have no constitutional protection against this requirement either. As such its a regulatory rather than constitutional issue.

quote:

I don't care what the FCC says about this, they do not have the authority to make such a regulation concerning speech.

Actually the FTC explicitly has the right to make such a regulation. This is a major part of thier job. And the regulation does not cover speech. It covers disclosure. In no way does it prevent or hinder free speech or expression. It simply requires disclosure. Which is a time and court tested concept.

quote:

The singling out of weblogs is especially galling. I can talk to people (face-to-face, via radio, or via TV) or write (in a paper or a magazine) about a product or service, and I don't have to disclose whether or not I'm getting compensation. But, if I do the same thing on my web site, then I'm subject to fines.

Actually, thats not true. The reason that this targetted weblogs is that regulations are already on the books for other media, such as tv, radio, magazines, newspapers, etc. All they did was update the regulation for the 21st century.

quote:

What crap. Plus, what's to prevent me from lying? I could write: "I received no compensation for this review." despite getting a free product. Who would know other than a few people who work for the vendor? Will the FCC next require us to post copies of our receipts?

Like all lying, this would be perjury. Nothing prevents it, however getting caught has fairly stiff penalties. Laws never prevent crime, only deter and punish it.

quote:

What is most irksome: the driving force behind this regulation is video game review web sites. That's right, people were angry because some reviewers were paid to praise mediocre games. Any discriminating reader would know which game review web sites were crap: older game reviews would have customer ratings significantly lower than reviewer ratings. But, instead of using their brains (ow, too much work), the whiners latched onto the "there ought to be a law" tactic and begged the FCC to trample our rights. Thank you, stupid game buyers!

I'd actually be willing to bet that the driving force behind this law is the scam blogs being run for acai berries, teeth whiteners, weight loss miracle plans, and the like. The Big Money has run a great series of articles on these scams and how much money they are making using exactly the tactics outlawed by this regulation. I know that the tech community seems to think that its so important that any and all regulations involving the internet are targetted at them specifically, but in the real world they are barely a consideration.